BARRY FUNERAL HOME v. NORRIS

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No. 38667.

Judges

LEE, J.

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BARRY FUNERAL HOME v. NORRIS.

Daniel, McKee McDowell, for appellant.

The first point presents the following question: Is the estate of a deceased minor child, four and one-half years of age, liable for the funeral expenses of said minor child, when the estate consists solely of damages recovered in a lawsuit under the wrongful death statute by the heirs of said minor child?

According to the general rule of law as stated in 21 Am. Jur. 570, Sec. 332, Executors and Administrators, it is the duty of the father to pay the funeral expenses of his minor child where he is able to do so, * * * but where the parent has not property of his own, resort may be had to the property of the child for such purpose.

The next question posed concerns the estate of the child consisting solely of damages recovered under the wrongful death statute, Sec. 1453, Code 1942. The pertinent part of this section is quoted: "Damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:", and there is no "except as hereinafter provided" stated in said section. There have been no cases found interpreting that particular part of Sec. 1453, and for an interpretation of that part of the statute reference is made to Sec. 309, Code 1942, which section deals with the exemption on the proceeds of a life insurance policy on a deceased person, and that section as it now reads, excepts "premiums paid on the policy by anyone other than the insured for debts due for expenses of last illness and for burial." That is the specific statutory interpretation of the exceptions intended for that particular section concerning the proceeds of insurance policies, and it is the opinion of the appellant that the same interpretation is intended and indicated by Sec. 1453, concerning damages under the wrongful death statute. Further, at one time the statute, Sec. 309, did not have the exceptions written into the statute, Sec. 1965, Code 1892, and the case of Dobbs v. Chandler, 84 Miss. 372, 36 So. 388, interprets the question whether funeral expenses can be paid from such monies received by the estate; in that case the Court held "The funeral expenses are not a debt of the decedent within the meaning of Sec. 1965, Code 1892."

The case of Dobbs v. Chandler is quoted as authority in the case of Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109, and a similar interpretation is drawn from the following cases: Delta Ins. Realty Co., et al. v. Benjamin, et al., 122 Miss. 275, 84 So. 226; Metropolitan Life Ins. Co. v. Jones, et al., 152 So. 267; Abernethy, et al. v. Savage, 159 Miss. 506, 132 So. 553.

It is the contention of the appellant that the same interpretation applies to the wrongful death statute, Sec. 1453, as applies to the statute concerning the exception on the proceeds of insurance, Sec. 309, and that under all the interpretations of the courts under the last quoted section, funeral expenses are payable out of the proceeds of the insurance policy.

It might be appropriate to mention further that the statute, Sec. 1453, states that the proceeds of the damage suit shall not be subject to the payment of the debts or liabilities of the deceased. It is submitted that the funeral expenses are not a debt or liability of the deceased, for such expense occurs after his death. Reference is made to the case of Gaulden v. Ramsey, cited above, wherein it is stated: "It is the duty of an administrator to bury the deceased and to pay the expenses incident thereto out of the property of the deceased. Donald v. McWhorter, 44 Miss. 124. And, if this expense has been incurred prior to the appointment of the administrator, it becomes a charge against him after his appointment payable out of the property of the deceased."

Reference is also made to the case of Tom E. Taylor Undertaking Co. v. Smith's Estate, 183 Miss. 45, 183 So. 391, wherein it is stated: "The funeral expenses are part of the cost of the administration of the estate. They arise and become a charge upon the estate after the death of the decedent."

Did the conversation, agreement, contract or whatever it might be called, between Barry and Waters, eliminate all liability of the estate for the burial of the child? Did it eliminate the privilege of the next of kin to select a proper funeral for the child and a different one from that small funeral mentioned in the conversation? Did it eliminate the continuing liability of the estate for the burial in the event Mr. Waters rescinded the contract prior to its performance? Did it eliminate the continuing liability of the estate when Mr. Waters was sued and his insurance company paid a judgment of $3,000.00 to the estate of the child? It is the contention of the appellant that this was an offer on the part of Mr. Waters leading to the formation of a unilateral contract which would only be accepted by the performance in the manner specified, which was never done, and which offer was rescinded before the burial of the child as shown by the testimony. It is the position of the appellant that under the circumstances here, this conversation between Mr. Barry and Mr. Waters had nothing whatsoever to do with the liability of the estate for the burial of the child.

If, by some stretch of the imagination, it can be said that a contract was entered into by and between Mr. Waters and Mr. Barry, (and it appears that it was certainly revoked and rescinded prior to the burial of the child, if it was made), the same was void and unenforceable as being within the statute of frauds and being a contract not in writing which was to answer for the debt, default or miscarriage of another person. When this child died, its estate, whatever it might have been, became primarily liable for the funeral expenses, and any promise on the part of Mr. Waters was not a new or original undertaking. There are three main cases on this particular point, which cover the question of the statute of frauds rather thoroughly; they are: Sweatmen v. Parker, 49 Miss. 19; Allen v. Smith Brand, 160 Miss. 303, 133 So. 599; Wade v. Long, 168 Miss. 434, 151 So. 564.

Brown Brown, for appellee.

It is true, that ordinarily the father of a minor child, or the estate has the duty to pay funeral expenses, under the rule as announced in 21 Am. Jur. 70, Sec. 332.

In the case at bar we do not have a situation that comes within the above general principle cited, for the reason that a primary and original obligation by contract to pay the funeral bill was entered into by and between Mr. Nick Waters, the driver of the vehicle, and Mr. H.E. Barry, the undertaker.

Under authority of Sec. 1453, Code 1942, the father of the deceased child brought, for himself and other heirs at law, action against Mr. Nick Waters in Prentiss County, Mississippi. Judgment was had and thereafter an administrator of the estate was qualified and payment of the judgment was made to the administrator, as usually demanded by insurance companies. The question has been raised by the appellant that such money recovered would not be exempt as to funeral expenses. We do not think that this question is necessary for a decision of this case, but since this is raised by appellant, we refer to Code Sec. 1453, supra, and the fact that an administrator was appointed does not change the fact that the money so recovered was exempt. For authority as to this position we cite De Baum v. Hulett Undertaking Co., 169 Miss. 488, 153 So. 513, and cases therein cited, where it is held "The exempt property descends freed not only from the debts incurred by the owner in his lifetime, but also the expenses of his last illness and funeral; and this is true whether the estate is solvent or insolvent." "The exempt property is no part of the estate to be administered, and descends directly under the statute."

It is also respectfully submitted that the agreement between Mr. Waters and Mr. Barry does not come within the statute of frauds, Sec. 264, Code 1942. On cross-examination Mr. Barry admitted that Mr. Waters asked him to take care of the funeral, and that he would pay for it, and Mr. Barry relied upon those statements. This testimony of Mr. Barry shows that an original and primary obligation was assumed by Mr. Waters and that he, Mr. Barry, accepted and relied upon the said obligation whereupon Mr. Barry took charge of the body for funeral.

49 Am. Jur. 455, Sec. 103, Promise to Pay Funeral Expense. "The well-established rule is that a promise to pay the funeral expenses of another is not a promise to answer for the debt of another where the undertaking is that the promisor shall be primarily responsible and credit is extended solely to him."

Smolka v. James T. Chandler Son, (Del.), 20 A.2d 131, 134 A.L.R. 629, Anno., 134 A.L.R. 633, 634. The annotations of 134 A.L.R., p. 633, referred to in the above section from Am. Jur. sets out the exact language of the Mississippi statute of frauds, and then announces the rule of law to be: "The rule appears to be well established that a promise or contract to be primarily responsible for the funeral expenses of another is not within the above statutory provision, the contract being an original contract and not a promise to answer for the debt of another, and that therefore such a promise, though not in writing, is enforceable." Smolka v. James T. Chandler Son, (Del.), reported herewith ante, 629; Samuels Bros. v. Falwell, 215 Iowa 650, 246 N.W. 657; Withers v. Withers, 30 Ky. Law Rep. 1099, 100 S.W. 253; Hillman v. Hulett, 149 Mich. 289, 112 N.W. 918; Brown v. Churchill, 89 N.H. 441, 200 A. 393; Fox Weeks v. Laney, 107 S.C. 318, 92 S.E. 1044. See Vicksburg Infirmary v. Hines, Director of Railroads, et al., 134 Miss. 162.

We find the following cases under the annotation of 20 A.L.R. 2d 248. Sec. 2, Question of fact, generally, p. 248. "Where the language used, together with the surrounding facts and circumstances, makes it doubtful whether the parties intended by the promise to create an original obligation or a collateral one to answer for the debt or default of another, the question is one of fact to be determined by the jury, or other trier of facts." Rickets v. Drew Grocery Co., 155 Miss. 459, 124 So. 495.

"Sec. 3, p. 251. In accordance with the rule stated in Sec. 2, supra, it has been held that upon conflicting evidence the question whether credit was extended solely to the person who promised to pay, in which event the promise is without the statute, is for the determination of the jury." Morgan v. King, 128 Miss. 401, 91 So. 30, citing Wallace v. Wortham, 25 Miss. 119, 57 Am. Dec. 197; Hendricks v. Robinson, 56 Miss. 694, 31 Am. Rep. 382.

Sec. 14, To Pay for Funeral Expenses of Third Person, p. 271. "In the following cases it was held that the question of whether a promise to pay the funeral expenses of a third person was original or collateral, within the meaning of the statute of frauds, was one of fact to be determined by the jury or the court sitting without a jury, where the defendant, who was a close friend of the deceased, promised the plaintiff undertaker that he would pay the entire cost of the decedent's embalming and funeral, the plaintiff's bookkeeping records showing the charge made to the defendant. Samuels Bros. v. Falwell, 215 Iowa 650, 246 N.W. 657.

The defendant, upon being informed by the plaintiff undertaker that he would not render funeral and burial service for a deceased friend of one of the defendant's employees, stated to the plaintiff that "I will pay it, and charge it to (the employee)," the charge on the plaintiff's books being made in the names of both the defendant and his employee. Lindsey v. Heaton, 27 Neb. 662, 43 N.W. 420.

The defendant, whose nephew was suddenly killed while working in the defendant's place of business, told the plaintiff undertaker to go ahead and furnish a casket and other things necessary for the nephew's burial, and that "it would be taken care of." Newkumet v. Meyer, 138 Okla. 136, 280 P. 579.

The defendant, who was the daughter of the deceased, told the plaintiff, after being informed by the latter that he could not wait to be paid out of the estate for the casket and other expenses, that she would raise the money in not to exceed thirty days. Kimbrel v. Long, 179 Okla. 318, 65 P.2d 475.

The evidence fully supports the finding of the chancellor, and he should not be reversed in this case. Savell v. Savell, (Miss.), 49 So.2d 726; Callicott v. State ex rel. Chatham, 210 Miss. 428, 49 So.2d 730; Cowart v. Cowart, 211 Miss. 459, 51 So.2d 775.

On conflicting evidence. Washington v. Spencer, (Miss.), 51 So.2d 742; Stringer v. Craft, (Miss.), 55 So.2d 869.

1. Parent and child — executors and administrators — funeral expenses.

A father is under the duty to pay the funeral expenses of his minor child, if he is able; and if he is not able, such expenses may be paid out of the property of the child.

2. Executors and administrators — funeral expenses.

Funeral expenses are not a debt of the decedent, but constitute an obligation of the administrator and may be paid as costs of the administration.

3. Funeral expenses — contracts — statute of frauds.

A third person may, by oral contract, assume the payment of the funeral expenses of another and such a contract does not fall within the purview of the statute of frauds.

4. Funeral expenses — contracts — executors and administrators.

The evidence sustained the finding that a motorist who had killed a child made an oral contract with an undertaker to furnish the funeral for the deceased, and that no other party or estate was to be responsible for the expenses thereof: Held that the estate of the deceased child could not be held liable for such expenses.

Headnotes as approved by Lee, J.

LEE, J.

Barry Funeral Home probated its claim for funeral expenses against the estate of L.T. Clinton, Jr., deceased. There was a contest by the administrator, and, upon final hearing, the court disallowed the claim. From the decree entered, the funeral home appeals.

On July 3, 1950, Nick Waters, in his automobile, struck and injured L.T. Clinton, Jr., a negro boy about four and a half years old. Waters took the child to a clinic where he died shortly afterwards. Waters, an undertaker himself, found out from L.T. Clinton, Sr., the boy's father, that he had no burial insurance and was without money, and thereupon contacted H.W. Barry of the Barry Funeral Home for the purpose of making arrangements for the burial. He and Barry agreed as to the type of the funeral, which would reasonably amount to about $100.00, and that Waters would pay such expense. Waters made this agreement known to L.T. Clinton, Sr., and to J.D. Norris, who was subsequently appointed administrator.

Later Barry found out that Waters carried liability insurance on his car, and he decided that he could likely sell a more expensive funeral. To that end, the next day, he talked to J.D. Norris, the landlord of the Clintons. However, he admitted, on cross-examination, that Norris neither authorized nor agreed to pay therefor. Following this, Barry showed L.T. Clinton, Sr., the layout for the funeral but admitted he knew Clinton had no property and could not pay the bill. Both Clinton and Norris testified that they assumed no responsibility whatever for the funeral expenses.

At sometime during these negotiations and before the burial, Barry called Waters over the telephone and told of a conversation with the attorneys for the insurance company, in which the attorneys expressed the belief that the insurance company would pay the expenses, and that he was going to get paid for his regular service. Waters replied that such course would be all right with him, but, in that event, not to look to him further. The funeral as furnished aggregated $370.00, which included $175.00 for a casket and professional services, $175.00 for a steel vault, and the balance for clothes, flowers and a marker.

Appellant contends that the contract between it and Waters, if established, had no bearing on the liability of the estate; that the contract was within the statute of frauds; that it was vitiated by the subsequent action of the parties; and that the liability of the estate remains.

Appellee contends that Waters and Barry entered into a valid agreement whereby Barry was to furnish the type of funeral agreed upon and Waters was to pay the expense; that neither the father nor the estate subsequently assumed any liability for such expense; and that both the father and the estate were fully released from any liability to pay such expenses.

(Hn 1) It is true that a father is under the duty to pay the funeral expenses of his minor child if he is able; and if he is not able, such expenses may be paid out of the property of the child. 21 Am. Jur., Executors and Administrators, Sec. 332, page 570.

(Hn 2) Funeral expenses are not a debt of the decedent, but constitute an obligation of the administrator, and may be paid as a part of the costs of administration. Dobbs v. Chandler, 84 Miss. 372, 36 So. 388; Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109; Tom E. Taylor Undertaking Co. v. Smith's Estate, 183 Miss. 45, 183 So. 391.

(Hn 3) But a third person may, by oral contract, assume the payment of the funeral expenses of another and such contract does not fall within the purview of the statute of frauds. See 49 Am. Jur., Statute of Frauds, Section 103, page 455, where it is said: "The well-established rule is that a promise to pay the funeral expenses of another is not a promise to answer for the debt of another where the undertaking is that the promisor shall be primarily responsible and credit is extended solely to him." See also annotations in 134 A.L.R. 634.

The same principle of law was applied in Biglane v. Hicks, (Miss.) 33 So. 413, where it was held that Biglane's oral promise to pay the charges and hospital fees for the treatment of his daughter, when there was no evidence as to whether or not the bill was ever charged to the daughter, was not void under the statute of frauds, and that he was liable therefor.

Of like effect is the case of Vicksburg Infirmary v. Hines, Director General of Railroads, 134 Miss. 162, 98 So. 530, the first syllabus of which is as follows: "Where an employee of a railroad company is received in a hospital for medical treatment, and continued services are rendered to such employee, at the special request of an authorized agent of the railroad company, and upon his promise that the company would pay for the services already rendered, as well as future services, and there is no evidence that the bill for such services was charged originally to the employee, such promise or agreement is an original one, having a consideration, and it is not void under the statute of frauds." Compare also Greenwood Leflore Hospital Com. v. Turner, 213 Miss. 200, 56 So.2d 496.

(Hn 4) On the disputed issues of fact, in our opinion, the learned chancellor had ample evidence to sustain his findings that a valid contract was entered into between Waters and Barry whereby Waters promised to pay the funeral expenses and became primarily responsible therefor and Barry accepted this promise and extended credit solely to Waters; that the contract was not within the statute of frauds; and that the estate was released from any liability for the funeral expenses. The conclusion of the court was also fortified with proof that neither Clinton, the father, nor Norris, the subsequent administrator, authorized or assumed liability for the funeral expenses after Barry sought a rescission of his contract with Waters.

It follows that the decree of the lower court ought to be, and is, affirmed.

Affirmed.

McGehee, C.J., and Hall, Arrington and Lotterhos, JJ., concur.

BARRY FUNERAL HOME v. NORRIS.

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